National Physicians Holding Company et al v. Middlebury Equity Partners LLC et al
Filing
120
ORDER granting 109 Motion to Compel; granting 111 Motion to Compel. Defendants Enright and Middlebury are ordered to respond to Plaintiffs' post-judgment interrogatories by not later than March 19, 2018. Ordered by US DISTRICT JUDGE HUGH LAWSON on 2/26/2018. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
NATIONAL PHYSICIANS
COMPANY, et al.,
HOLDING
Plaintiffs,
Civil Action No. 7:09-CV-21
v.
MIDDLEBURY
LLC, et al.,
EQUITY
PARTNERS,
Defendants.
ORDER
Before the Court are Plaintiffs’ Motions to Compel Defendant Enright (Doc.
109) and Defendant Middlebury Equity Partners, LLC (Doc. 111) to respond to
post-judgment discovery requests. As discussed below, the motions are
GRANTED, and Defendants are ORDERED to respond to Plaintiffs’ postjudgment discovery requests by March 19, 2018.
I. FACTS AND PROCEDURAL HISTORY
On June 27, 2017, the Court entered a consent judgment in favor of
Plaintiffs. (Doc. 100). The current dispute relates to post-judgment discovery
sought by Plaintiffs in aid of execution. On July 28, 2017, Plaintiffs served
Defendants’ counsel with Plaintiffs’ First Post-Judgment Discovery Requests to
Todd
Michael
(Middlebury).
Enright
(Enright)
and
Middlebury Equity Partners,
LLC
Counsel for Plaintiffs attempted to resolve the dispute by communicating
with Enright directly as he is now proceeding pro se. However, Enright
responded by sending two letters on November 22, 2017 and November 30,
2017, respectively, in which he asserted his fifth amendment right not to respond
to the discovery requests. Plaintiffs’ counsel requested the Court’s assistance,
and a telephone conference involving all parties was held on December 12,
2017. Enright again asserted his fifth amendment privilege during the
conference.
Plaintiffs now move this Court to compel post-judgment discovery and to
award attorney fees and litigation expenses incurred in filing the motion.
II. ANALYSIS
In support of Plaintiffs’ Motions to Compel, they assert that Federal Rule of
Civil Procedure 26, 37(a)(3)(B), and 69 authorize and support an order
compelling discovery. (Docs. 109, 111). Generally, a district court's decision to
compel discovery is not an abuse of discretion where the items requested are
arguably relevant to the case. See Maddow v. Procter & Gamble Co., Inc., 107
F.3d 846, 853 (11th Cir. 1997); Fed. R. Civ. P. 37. The information sought need
not be admissible at trial but must only be likely to lead to relevant admissible
information. Fed. R. Civ. P. 26(b). Thus, the degree of need sufficient to justify
granting a motion to compel will vary to some extent with the burden of producing
the requested information. In other words, the relevance of discovery requests
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must be weighed against “oppressiveness” in deciding whether discovery should
be compelled, and a plaintiff seeking a broad range of documents must show a
more particularized need and relevance. See United States v. R. Enters., Inc.,
498 U.S. 292, 306 n. 4, 111 S.Ct. 722, 731 (1991) (illustrating generally the
standard for ruling on civil discovery disputes) (internal cites and quotes omitted).
Judgment creditors are entitled to discovery, including interrogatories,
“from any person—including the judgment debtor”—in aid of the judgment or
execution. Fed. R. Civ. P. 69(a)(2). Responding parties must answer the
interrogatories within thirty days after being served, unless otherwise stipulated
to or ordered by the Court. Fed. R. Civ. P. 33(b)(2). Parties seeking discovery
may move for an order compelling an answer when the responding party fails to
answer an interrogatory submitted under Rule 33 or to produce documents as
requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B).
A. Defendant Enright
Plaintiffs request that Enright respond to interrogatories and produce
documents that pertain to the collection of judgment. (Doc. 109-2). In response to
Plaintiffs’ Motion to Compel, Defendant Enright submitted a brief in support of his
general objection (Doc. 116). Enright asserts that due to his pending bankruptcy
petition, a pending criminal investigation in Vermont, a pending RICO action in
the United States Bankruptcy Court in Maine, and a “potentially open” criminal
prosecution in Maine that resulted in a hung jury after trial in 2012, he must
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assert his fifth amendment privilege against self-incrimination in the above-styled
matter. (Doc. 116, pp. 2-3). He states: “Enright has invoked his Fifth Amendment
rights with respect to answering any Post Judgment discovery arising from
Plaintiffs non-dischargable claim for fraud which was subject to a settlement
agreement arising from the very bankruptcy proceeding to which Enright is still
the subject to a pending federal criminal investigation.” (Doc. 116, p. 4).
Plaintiffs correctly contend that Enright’s blanket Fifth Amendment
objection is improper. (Doc. 119, p. 2). The privilege against self-incrimination
may be invoked in civil as well as in criminal proceedings. See Baxter v.
Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558 (1994). In both civil and
criminal cases, the Fifth Amendment right only applies to testimonial evidence.
United States v. Hubbell, 530 U.S. 27, 34–36, 120 S.Ct. 2042–43 (2000).
Evidence is testimonial when a defendant's communication itself, explicitly or
implicitly, relates a factual assertion or discloses information. Id. at 37, 120 S.Ct
at 2044.
However, the Fifth Amendment privilege may only be asserted when there
is a substantial, real hazard of self-incrimination. United States v. Reis, 765 F.2d
1094, 1096 (11th Cir. 1985) (citation omitted). “[A] witness is not exonerated from
answering merely because he declares that in so doing he would incriminate
himself – his say-so does not of itself establish the hazard of incrimination.”
Hoffman, 341 U.S. at 486. To properly invoke the privilege, the party invoking the
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privilege must provide “credible reasons why his answers would incriminate him.”
Scarfia v. Holiday Bank, 129 B.R. 671, 674 (M.D. Fla. 1990). It is well established
that a person may not make a blanket objection to testifying or producing records
based on Fifth Amendment privilege, but instead, must invoke the privilege
question by question or request by request. See United States v. Roundtree, 420
F.2d 845, 852 (5th Cir. 1969). 1 The ban on blanket Fifth Amendment objections
prevents a person from wholesale refusing to answer any questions or to
produce any documents without specifically considering whether the information
sought may actually raise a “substantial and real hazard of self-incrimination.”
United States v. Argomaniz, 925 F.2d 1349, 1353 (11th Cir. 1991).
Here, Enright does not object to Plaintiffs’ post-judgment discovery
requests on a question by question or request by request basis. Instead, Enright
offers a litany of excuses as to why he must assert his Fifth Amendment rights.
Specifically, Enright refers to his bankruptcy case and other pending criminal
matters and states “if compelled to answer, Enright contends that such testimony
could be incriminating in light of the current criminal investigation.” (Doc. 16, p.
4). Enright does not specify which interrogatories or documents for which he
asserts his privilege, nor does he persuade the Court that “a substantial and real
hazard of self-incrimination” exists. Enright’s objection is precisely the type of
Pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981),
opinions of the Fifth Circuit issued prior to October 1, 1981, are binding
precedent on the Eleventh Circuit.
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1
blanket Fifth Amendment objection prohibited by Roudtree. 420 F.2d at 845.
Thus, Enright is ordered to respond to Plaintiffs’ post-judgment interrogatories
and document requests.
B. Defendant Middlebury
Plaintiffs request that Middlebury respond to interrogatories and produce
documents that pertain to the collection of judgment. Counsel for Defendant
Middlebury responded to Plaintiffs’ motion (Doc. 114) by reciting the procedural
history of Enright’s personal bankruptcy case to illustrate that Middlebury “is
defunct, failed and economically deceased . . . with no assets and substantial
debts.” (Doc. 114, p. 8). Like Enright, counsel for Middlebury did not object to
Plaintiffs’ post-judgment discovery requests on a request by request basis.
Instead, counsel for Middlebury explains why Defendant Enright has no control
over Middlebury’s management or assets. These assertions, however, are not an
appropriate response to Plaintiffs’ post-judgment discovery requests.
Here, it appears that the information requested is relevant to the instant
case. Furthermore, it appears that producing responses to the interrogatories
and producing the requested documents would not be overly burdensome to
Middlebury. Therefore, the Court concludes that Middlebury should produce all
the requested information contained in Plaintiffs’ post-judgment discovery
requests.
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C. Attorney Fees
Plaintiffs’ seek to recover attorney fees incurred in bringing both motions.
Federal Rule of Civil Procedure 37 provides that when a motion to compel is
granted and the delinquent party is afforded an opportunity to be heard, the court
must require the delinquent party to pay the movant’s reasonable expenses
incurred in obtaining the order, unless: “(i) the movant filed the motion before
attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R.
Civ. P. 37(a)(5)(A)(i)-(iii).
Here, based on Plaintiffs’ Motion and attached exhibits, and the Court’s
participation in the December 12, 2017 telephone conference, the Court
concludes that Plaintiffs attempted in good faith to resolve the dispute. Within ten
(10) days of today’s Order, Plaintiffs are directed to advise the Court of how
much time was spent on bringing the motions and the prevailing rates so the
Court may have a basis for award of attorney fees.
III. CONCLUSION
For the reasons discussed above, Plaintiffs’ Motions to Compel (Docs. 109,
114) are GRANTED. Defendants Enright and Middlebury are ORDERED to
respond to Plaintiffs’ post-judgment interrogatories by March 19, 2018.
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SO ORDERED this 26th day of February, 2018.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
ehm
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